In the United States District Court s21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

YORIE VON KAHL and LEONARD PELTIER, ) Petitioners, ) CASE NO. 04-3418-RDR ) v. ) ) UNITED STATES ex rel. ) UNITED STATES ATTORNEY GENERAL, ) Respondent. )

PETITIONERS’ BRIEF TO ASSIST COURT IN SUMMARILY DECIDING THEIR PETITION FOR HABEAS CORPUS AND TO ESTABLISH BAIL

INTRODUCTION

The government has chosen not to show cause and it did not file an opposition to

Petitioners’ motion for this Court to summarily decide this matter. Petitioners therefore submit this memorandum to assist the Court in summarily resolving this matter in favor of Petitioners.

In 1984, Congress passed the Sentencing Reform Act ("SRA") (S. Rep. 98-225,

1984 U.S.C.C.A.N. 3182, 3220),1 by which Congress sought to create a sentencing structure that would eliminate disparity in sentencing, establish certainty for release from confinement, and abolish the Commission and the parole system. The Senate Report noted:

At present, the concepts of indeterminate sentencing and parole release depend for their justification exclusively upon this model of ‘coercive’ rehabilitation. . . Recent studies suggest that this approach has failed. Most 1 Senate Report 98-225, 1984 U.S.C.C.A.N. 3182 will hereinafter be cited by the respective page number as “S. Rep. 98-225 at ___.”

1 sentencing judges, as well as the Parole Commission, agree that the rehabilitation model is not an appropriate basis for sentencing decisions. (S. Rep. 98-225 at 3221, 3223)(Emphasis added.) The Senate Report continued:

The efforts of the Parole Commission to alleviate this disparity unfortunately contributed to a second grave defect of present law: no one is ever certain how much time a particular offender will serve if he is sentenced to prison … Thus, prisoners often do not really know how long they will spend in prison until the very day they are released. The result is that the existing Federal system lacks the sureness that criminal justice must provide if it is to retain the confidence of American society and if it is to be an effective deterrent against crime. (Id. at 3232-3233)(Emphasis added.) The Senate Report concluded:

The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system, and makes it clear, that the system is ripe for reform. Correcting our arbitrary and capricious method of sentencing will not be a panacea for all of the problems which confront the administration of criminal justice, but it will constitute a significant step forward. (Id. at 3248.) (Emphasis added.)

Congress enacted Section 235(b)(3), effective October 12, 1984,2 which required

“the Parole Commission [to] set a release date consistent with the applicable parole guideline” for those in its custody “prior to the expiration of the five years,” at which point the Commission would become extinct. Congress retained the Commission for five years solely “to set release dates for prisoners sentenced before that date” emphasizing that, by “the end of that period, the Parole Commission would set final release dates for all prisoners still in its jurisdiction.” Senate Report No. 98-225, 98th Congress, First

Session, September 12, 1983, p. 56 n.82.

2 Lyons v. Mendez, 303 F.3d at 285, 289 (3rd Cir. 2000); Piekarski v. Bogan, 912 F.2d 224,225 (8th Cir. 1990); Norwood v. Brennan, 891 F.2d 179, 181-82 (7th Cir. 1989); Dallas v. Martin, 929 F.2d 587, 589 & n.4 (10th Cir. 1991). The Tenth Circuit issued a conflicting ruling that the statute did not become effective until December 7, 1987. Indeed, the Tenth Circuit decision conflicted with prior decisions of that Court. See Dallas v. Martin, 929 F.2d 587 (10th Cir. 1991).

2 In enacting Section 235(b)(3), Congress recognized the inherent arbitrariness underlying parole decisions. As the United States Supreme Court stated in Mistretta v.

United States, 488 U.S. 361, 366 (1989):

It is observed that the indeterminate-sentencing system had “unjustified” and “shameful” consequences. The first was the great variation among sentences imposed by different judges upon similarly situated offenders. The second was the uncertainty as to the time the offender would spend in prison. Over three years later, on December 7, 1987, Congress amended Section 235(b)

(3) by repealing only the release criteria and restoring the criteria under 18 U.S.C. 4206,

Public Law 100-182, §2. Significantly, Congress expressly provided: “The amendments made by this Act shall apply with respect to offenses committed after the enactment of this Act.” Public Law 100-182, §26. (Emphasis added.) The amendment did not resurrect the Commission which became extinct as of midnight on October 11, 1989, by the terms of the original Section 235 (b)(3).

This petition therefore involves the wrongful application of Section 235(b)(3) of the SRA which: (1) became effective October 12, 1984, Lyons v. Mendez, 303 F.3d 285,

289 (3rd Cir. 2002),3 (2) provided a mechanism by which prisoners sentenced “under the old system” would be issued a release date within a five-year period from the Act’s effective date, and (3) mandated “the Parole Commission [to] set a release date consistent

3 The Tenth Circuit issued a conflicting ruling that Section 235(b)(3) did not become effective until November 1, 1987. (Memorandum of Decision at 4.) This is contrary to Congress’ expressed intent. Indeed, according to the Commission’s quarterly meeting minutes from November 14, 2002 (submitted December 26, 2002), the Commission stated: “[O]n October 12, 1984 Congress eliminated federal parole and set in place provisions at Section 235(b) of the Sentencing Reform Act for the transition from a sentencing/punishment system with parole eligibility to one in which the offenders would serve determinate sentences.” See also note 2 supra.

3 with the applicable parole guideline” for those remaining in its custody “prior to the expiration of the five years.” Pub. L. 98-473, Title II, Section 235(b)(3).

Congress mandated that Public Law 100-182, §2, applied only prospectively.4

REASONS FOR GRANTINT THE PETITION

I. THE UNAMBIGUOUS LANGUAGE OF THE STATUTE REQUIRES THIS COURT TO GRANT THE PETITION. Courts must read statutes, wherever “fairly possible,” to avoid serious constitutional issues. INS v. St. Cyr, 533 U.S. 289, 300 (2001); Landgraf v. USI Film

Products, 511 U.S. 244.265, 268-69 (1994); United States v. Safarini, 257 F.2d 191,196

(D.C. 2003). Indeed, where, as here, Congress has mandated the effective date, a

“statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.” INS, 533

U.S. at 317, quoting, Landgraf, 511 U.S. at 257. See also Rivers v. Roadway Express

Inc., 511 U.S. 298, 313 n.12 (1994)(“In statutory cases the Court has no authority to depart from the congressional command setting the effective date of a law that it has enacted”) Section 235(b)(3), as enacted and effective on October 12, 1984, clearly and unconditionally included all “old law” prisoners that would be in the Commission’s jurisdiction on the day before five years from the effective date - and that includes

Petitioners.

Thereafter, Congress expressly declared that the December 7, 1987 amendment would apply to “offenses committed after [its] enactment.” Hence, it is “not even

4 The Tenth Circuit, as did the District Court, literally accepted the government’s argument to ignore Congress’ mandate that the amendment “shall apply with respect to offenses committed after the enactment of the Act’…[of] December 7, 1987.”

4 arguable[e] [to] suggest that it has any application to conduct that occurred” before

December 7, 1987. Martin v. Haddix, 527 U.S. 343, 352 (1999). Absent “a ‘clear congressional intent’ favoring retroactive application,” the presumption against retroactivity controls. Martin, 527 U.S. at 354, quoting, Landgraf, 511 U.S. at 263, 280.

This Court cannot ignore that Public Law 100-182, §2, applies only to offenses committed after its effective date. Thus, the amendment could not apply to the Petitioners whose offenses were all committed before December 7, 1987. Constitutional infirmities can be avoided by this Court’s simply following Congress' mandate that Public Law 100-

182, Section 2, applies only to crimes committed after December 7, 1987. See Public

Law 100-182, §26. This Court should grant the instant petition for this reason alone.

II. RETROACTIVE APPLICATION OF PUBLIC LAW 100-182, §2 VIOLATES THE EX POST FACTO AND BILL OF ATTAINDER CLAUSES WITH RESPECT TO THE PETITIONERS. The case of Lynce v. Mathis, 519 U.S. 433, controls the issue presented. A law violates the ex post facto and bill of attainder clauses if it disadvantages the offender affected by “increasing the punishment for the crime.” Lynce, 519 U.S. at 441. See also

Collins v. Youngblood, 497 U.S. 37, 50 (1990). In Lynce, 519 U.S. at 441, 443-46, the

United States Supreme Court applied two factors: (1) the act “`must apply to events occurring before its enactment,’ and it (2) ‘must disadvantage the offender affected by it.’” See also Weaver v. Graham, 450 U.S. 24, 29 (1981). “The relevant essential inquiry demanded by the Ex Post Facto Clause” is “whether the [legislative action] had the effect of lengthening [the] period of incarceration.” 519 U.S. at 443.

It is beyond question that retroactive application Public Law 100-182, §2, “would have the effect of lengthening [Petitioners’] period of incarceration” from the provisions

5 in effect under the original Section 235(b)(3). Just as in Lynce, “it is quite obvious that the retroactive change was intended to prevent the early release of prisoners…who had accumulated” a right to mandatory release within the parole guidelines under the original

Section 235(b)(3). 519 U.S. at 445. The December 1987 amendment clearly

“disadvantaged” the Petitioners because “it … prolonged [their] imprisonment.” 519 U.S. at 446-47.

Under Lynce, ex post facto analysis requires a determination of the law in effect when the retroactive change “lengthening [the] period of incarceration” became effective.

As of the effective date of the original Section 235(b)(3) (October 12, 1984), that statute governed the terms of imprisonment and release of Petitioners. Instead of analyzing the effect Public Law 100-182, §2 had on the rights provided to Petitioners under the original

Section 235(b)(3) as originally enacted, some courts have looked to the originally imposed lengths of sentences and 18 U.S.C. § 4206, to determine the actual effects upon their sentences. This analysis ignored the appropriate ex post facto analysis as established in Lynce.

The real question presented necessarily turns upon the state of the law before the effective date of December 7, 1987 legislation. Carmell v. Texas, 529 U.S. 513, 520

(2000) (“`The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date.’”) (quoting Weaver v.

Graham, 450 U.S. 24, 31 (1981)). Just as the “overcrowding statute in effect” at the time of Lynce’s offense “was modified in subsequent years” leading to the accumulation of additional good-time credits which reduced Lynce’s confinement from his original sentence, Lynce, at 447-449; so too, the original Section 235(b)(3) enacted after

6 Petitioners’ offenses, shortened Petitioners’ sentences. Section 235(b)(3) modified the

Commission’s discretionary release authority under 18 U.S.C. § 4206 and mandated non- discretionary release under the parole guidelines. Public Law 100-182, §2 clearly

“change[d] the legal consequences” of their sentences as they existed “before its effective date” and the change was highly detrimental [literally penalizing] to Petitioners. Public

Law 100-182, §2 which amended Section 235(b)(3) and restored the Commission’s arbitrary and capricious decision-making until its expiration on October 11,1989, the retroactive application in violation of Congress’ express statement of prospective application only is classically unconstitutional.5 Weaver v. Graham, 450 U.S. at 33 (“[A] retroactive law…can be constitutionally applied to Petitioners only if it is not to [their] detriment.”) (citing Dobbert v. Florida, 432 U.S. 282, 293-294 (1977)); Ex Parte

Medley, 134 U.S. 160 (1890).

Lyons v. Mendez, 303 F.3d 285, is the only case found by Petitioners that addresses the penultimate issue raised herein. In that case, Lyons committed his offense and was sentenced in 1986. The Court reviewed the entire statutory scheme to determine the effective date of Section 235(b)(3) and whether the mandatory release dates applied to him. The Court correctly concluded that Section 235(b)(3) became effective on

October 12, 1984. 303 F.3d. at 291 (“Section 235(b)(3) took effect upon enactment”). In doing so, it reasoned that, to hold that Section 235(b)(3) did not take effect until

November 1, 1987, would create “an absurd result” by prohibiting the other criteria

5 The amendment did not in any way resurrect the Commission. The Commission expired as of October 11, 1989. Any attempt by Congress to resurrect it thereafter was null and void. In any case a Parole Commission and statutes created or re-created on December 1, 1990 would present a clear ex post facto problem, if applied to Petitioners, who were no longer subject to Parole or a Parole Commission and, who, by prior law, had been congressionally ordered to be released within certain dates.

7 necessary to engage the new Sentencing Commission and its guidelines within statutorily required periods. 303 F.3d at 291-292 (quoting and adopting the reasoning of Romano v.

Luther, 816 F.2d 832, 839 (2nd Cir. 1987)).

Since the Lyon’s Court correctly determined that the effective date of § 235(b)(3) is October 12, 1984, this necessarily means that the five-year period ended on October

11, 1989, and the Commission and all the parole laws listed in § 218(a) and 235(b)(1) were abolished and repealed on October 12, 1989. See e.g. Piekarski v. Bogan, 912 F.2d

224, 225 (8th Cir. 1990) (Parole Commission abolished in 1989, five years after date of enactment of §325(b)(3)).

Thus, the first five-year continuation of the Commission and the parole statutes, enacted by Public Law 101-650, Section 316, 104 Stat. 5115, on December 1, 1990, simply had no operational effect.6 There was no Commission or parole statutes left to continue for five years, and the amendments passed since that time granting additional extensions, the latest being Public Law 107-273, Section 11017(a), 116 Stat. 1758, 1824

(2002), have no applicability, and certainly not respecting Petitioners.

III. THE CONTINUANCE OF THE PAROLE COMMISSION SYSTEM VIOLATES IS ARBITRARY AND CAPRICIOUS AND VIOLATES THE DUE PROCESS CONSTITUTIONAL PROHIBITION FAILING TO PROTECT PETITIONERS’ LIBERTY OF WHICH THEY WERE CONSTITUTIONALLY ENTITLED. Section 235(b)(3) was enacted to obviate the “arbitrary and capricious” punishment inherent and uncorrectable in the federal parole system. Sen. Rep. No. 98-

225, at 65 (“Conclusions” finding parole system “arbitrary and capricious” requiring

“correction”). Despite Congress’ recognition of the inherent arbitrariness of the system

6 See Note 6 supra.

8 under which the Commission exercised discretion in determining parole dates, the Tenth

Circuit held Public Law 100-182, § 2, applied to Petitioners and thereby restored the very arbitrary and capricious system that Congress abolished. This ruling is blatantly wrong since the Commission’s decisions relative to the Petitioners are arbitrary and capricious as a matter of law in violation of the Due Process Clause of the Fifth Amendment.

The loss of liberty and criminal punishment present significantly different considerations. It would be entirely irrational to suppose Congress intended to subject

Petitioners to punishment already declared “arbitrary and capricious” by Congress. Cf.

Wolf v. Mcdonnell, 418 U.S. 539, 588 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government.”)

Because Congress mandated that the amendment applied only prospectively,

Congress did not violate Petitioners’ due process rights. However, the Commission and the courts are doing so by defying the mandate of Congress, and the Commission, as upheld by the courts, is acting arbitrarily and capriciously in violation of Petitioners’ due process rights just as Congress recognized.

CONCLUSION

In accordance with the arguments and authorities set forth herein, Petitioners respectfully request that this Court to summarily grant its Petition to apply Amended

Section 235(b)(3) only prospectively, or, alternatively, that Amended Section 235(b)(3), as applied retroactively, is unconstitutional. This Court should grant the requested relief and order the release of petitioners.

YORIE VON KAHL and LEONARD PELTIER By Their Attorney

9 ______Kay Huff, Esquire 1040 New Hampshire Street Lawrence, KS 66044 (785) 832-1944

______Barry A. Bachrach Bowditch & Dewey, LLP 311 Main Street P. O. Box 15156 Worcester, MA 01615-0156 (508) 926-3403 April ____, 2005